The government's legal arguments justifying the detention of hundreds of people at the Guantánamo Bay naval base have been repudiated three times by the U.S. Supreme Court. But it's not just outsiders who take issue with the U.S. Justice Department strategy: Up to one fourth of the department's own civil appellate staff has recently opted out of handling the government's cases against detainee appeals, two sources familiar with the matter tell U.S. News.
These conscientious objectors—their exact number is not known—have decided not to take part in the government's litigation against the detainees because of disagreements with the legal approach, these sources say. They would not elaborate on the specific reasons for the objections, but critics have long objected to the government's failure to formally charge detainees and have pushed for closing Guantánamo because of allegations of torture and inhumane conditions. Defense lawyers also contend that the government has stymied their cases by withholding documents and curbing client access.
The quiet rebellion has emerged in recent months among the approximately 56 attorneys in the appellate section of the Justice Department's civil division following a court ruling in February that placed the defense of the approximately 130 remaining Guantánamo cases under the responsibility of the appellate lawyers.
Will this change any administration senior official's mind? No, of course not. But the fact that so many lawyers decline to handle these cases sends a strong message to their bosses, and to the public. For many people there comes a time in their life when they're asked to do something that they disagree with, that they think is immoral, or irresponsible and wrong. Sometimes they simply have to do what they're told, and leave it to their superiors to take responsibility for the action. Or their position requires them to do things that they may not personally agree with, because of the profession they occupy. But there are times when what's asked is simply too much-they're asked to do something illegal, or something that profoundly contradicts their moral beliefs, or they've simply been abused by their superiors or asked to do something in bad faith-and at that point, people with integrity and moral courage will find it necessary to say no. Lawyers will often find themselves in positions where they have to defend the indefensible, and as advocates for the government these lawyers are no different. But the first duty of lawyers who work for the government is to the American people and the Constitution, not to the particular administration they work for, and as a result they have an even greater responsibility to point out or refuse to accommodate what they see to be wrongful actions on the part of the government. It's taken long enough, but I applaud these lawyers for remembering that fact.